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State v. Sanders

Supreme Court of Kansas

July 26, 2019

State of Kansas, Appellant,
v.
Lee Sawzer Sanders, Appellee.

         SYLLABUS BY THE COURT

         1. In reviewing the granting or denial of a motion to suppress evidence, appellate courts determine whether the factual findings underlying the district court's decision are supported by substantial competent evidence. Its ultimate legal conclusions are reviewed de novo. Appellate courts do not reweigh evidence or make credibility determinations.

         2. The State bears the burden of proving the lawfulness of its search and seizure.

         3. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. The United States Supreme Court has interpreted this prohibition to require law enforcement officers who seize an individual or who conduct a search to have either a warrant or a basis for relying on one of the specific and well-recognized exceptions to the warrant requirement.

         4. One exception to the warrant requirement allows an officer to stop and briefly detain an individual without a warrant when the officer has an articulable and reasonable suspicion, based in fact, that the detained person is committing, has committed, or is about to commit a crime.

         5. To have reasonable suspicion to detain an individual, a police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The suspicion must have a particularized and objective basis and be something more than a suspicion or hunch.

         6. A party must object to inadequate findings of fact or conclusions of law to preserve the issue for appeal. When a party fails to object, an appellate court can presume the district court found all facts necessary to support its judgment. Remand is necessary only where the record does not support such a presumption and the lack of findings precludes meaningful review.

         7. Under the exclusionary rule, if a criminal defendant challenges the State's use of evidence obtained in violation of the Fourth Amendment to the United States Constitution, a court may suppress the primary evidence obtained as a direct result of an illegal search or seizure and evidence later discovered and found to be derivative of an illegality. But the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. Instead, to trigger the exclusionary rule, police conduct must be sufficiently deliberate, reckless, or grossly negligent, or, in some circumstances, recurring or systemic negligence, so that exclusion can meaningfully deter it.

         8. The attenuation doctrine is an exception to the exclusionary rule. It applies when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.

         9. No bright-line rule defines when the attenuation doctrine applies. Rather, courts must examine the particular facts of each case and determine whether those circumstances attenuate the taint of illegality.

         10. When a party appeals a ruling based on the attenuation doctrine, the appellate court considers a question of fact to determine whether it is supported by substantial competent evidence. Substantial competent evidence possesses both relevance and substance and furnishes a substantial basis in fact from which a court can reasonably resolve the issues. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.

         11. The United States Supreme Court has identified three nonexclusive factors for determining whether the attenuation doctrine applies. First, courts look to the temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional seizure. Second, courts consider intervening circumstances. Third, and particularly significant, a court examines the purpose and flagrancy of the official misconduct. No one factor is controlling, and other factors also may be relevant to the attenuation analysis.

         12. Under the attenuation doctrine's temporal proximity factor, a finding of attenuation is not generally appropriate unless substantial time elapses between an unlawful act and the discovery of evidence.

         13. Under Utah v. Strieff, 579 U.S.___, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016), a valid, preexisting, and untainted arrest warrant is an intervening factor that strongly favors the State. This holding abrogates that portion of State v. Moralez, 297 Kan. 397, 415, 300 P.3d 1090 (2013), holding the discovery of a preexisting warrant carries little weight when applying the attenuation doctrine. It does not abrogate other portions of Moralez.

         14. An arrest warrant discovered after a search does not intervene in the causal chain between the constitutional violation and the discovery of evidence. It thus is not an intervening circumstance for purposes of the attenuation doctrine analysis.

         15. Whether the third attenuation factor of purposeful or flagrant misconduct weighs in favor of suppression turns on multiple factors, including whether the officer acted in good faith, committed multiple unconstitutional acts during the unconstitutional seizure, or acted as part of a systemic and recurrent pattern of police misconduct. As to the factor of good faith, the officer's subjective state of mind weighs heavily. Courts should generally find purposeful and flagrant misconduct if: (1) the impropriety of the official's misconduct was obvious or the official knew, at the time, that his or her conduct was likely unconstitutional but still engaged in it; and (2) the misconduct was investigatory in design and purpose and executed in the hope that something might turn up.

         16. Generally, parties may not raise constitutional issues for the first time on appeal unless they successfully argue that one of three recognized exceptions applies. Based on this principle, Supreme Court Rule 6.02(a)(5) (2019 Kan. S.Ct. R. 34) requires an appellant's brief to include a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on. If the issue was not raised below, there must be an explanation why the issue is properly before the court. Litigants who ignore this rule risk a ruling that the issue has been waived or abandoned.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed May 25, 2018.

          Appeal from Shawnee District Court, Mark S. Braun, judge.

          Rachel L. Pickering, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the briefs for appellant.

          Reid T. Nelson, of Capital and Conflicts Appeals Office, argued the cause, and was on the briefs for appellee.

          LUCKERT, J.

         In this interlocutory appeal of a district court order suppressing evidence, the State argues the district court committed two errors. A Court of Appeals panel rejected the State's argument about one error but agreed with the State on another. Specifically, it rejected the argument that the district court erred by concluding police officers lacked reasonable suspicion to detain Lee Sawzer Sanders. But it agreed with the State that the attenuation doctrine applied and the district court should not have suppressed the evidence obtained in a search of Sanders. In invoking the attenuation doctrine, the panel noted that, after the officers seized and searched Sanders, they discovered a preexisting arrest warrant. This discovery attenuated the taint of the unconstitutional seizure, according to the panel. See State v. Sanders, No. 118, 640, 2018 WL 2375258, at *1, 5-7 (Kan. App. 2018) (unpublished opinion).

         Sanders petitioned for review arguing the panel erred in applying the attenuation doctrine under these facts. And the State cross-petitioned arguing the panel erred in holding the officers lacked reasonable suspicion to detain Sanders and in failing to consider its alternative argument that the inevitable discovery doctrine also provides a basis for concluding the district court should not have suppressed the evidence.

         We granted review and now reverse the Court of Appeals panel and affirm the district court. We agree with the district court's and the panel's determinations that the officers lacked reasonable suspicion to detain Sanders. We disagree, however, with the panel's application of the attenuation doctrine. The panel held the officers' discovery of a warrant interrupted the causal chain between the detention and the search. But the search of Sanders occurred before the officers discovered the arrest warrant. While the officers searched some possessions they had seized after they discovered the warrant, the search incident to arrest exception to the warrant requirement-the exception discussed by the Court of Appeals-did not apply because the items were no longer in Sanders' reach or control. And while, for the first time on appeal, the State offers the inevitable discovery doctrine as an exception to the exclusionary rule and the inventory search exception as an alternative basis to justify the search, it failed to preserve these arguments and we decline to address them. We thus conclude the district court did not err in suppressing the evidence obtained when the officers searched Sanders.

         Factual and Procedural Background

         Sanders was stopped by two Topeka Police Officers, Raph Belt and Cody Purney, in a restaurant's parking lot. The officers provided differing accounts of the event. Officer Belt testified he and Officer Purney had just finished investigating an unrelated incident and were seated in their parked patrol car when they noticed Sanders trying to open the door of a nearby car. Officer Belt testified that Sanders saw the officers, walked away from the car, and went into a nearby alleyway. In contrast, Officer Purney testified they had not been responding to a call but were driving down the road in what he described as "self-initiated activity" or "free mode." Officer Purney stated he had not seen Sanders trying to get into the car. Instead, Officer Belt told him he saw Sanders close the car door and go down the alleyway. Officer Belt alleged Sanders tried to conceal himself in the alleyway. He testified he "[k]ind of hollered at [Sanders], 'hey, I would like to speak with you.'" Officer Belt claimed Sanders ran from him, although Sanders ultimately stayed in the vicinity of the restaurant and returned to the car, which officers later learned belonged to Sanders. At that point, Officer Belt physically contacted Sanders and placed him in handcuffs.

         Officer Belt then asked Sanders if he had any weapons on his person, and Sanders said he had a knife in his pocket. Officer Belt conducted a pat-down of Sanders' person and felt an item he thought was a pocket knife that turned out to be a key. Officer Belt asked Sanders where the knife might be. Sanders told him it might be in his vehicle but he was not sure. Officer Belt asked to search Sanders for the knife and Sanders agreed. Officer Belt found a methamphetamine pipe, deck of cards, and "a prison or a jail I.D." Officer Purney then ran a warrant check and discovered an outstanding arrest warrant. Sanders was arrested and Officer Belt went through the items taken from Sanders' person, finding a small bag containing methamphetamine inside the card deck.

         The State charged Sanders with possession of methamphetamine and possession of drug paraphernalia. Sanders filed a motion to suppress evidence, arguing he had been unlawfully seized and searched. The district court granted Sanders' motion, finding the officers' testimony conflicting and "too much of the answers to the questions or the scenario posed by the officers appears to be that of filling in the blanks after the fact as opposed to what they did, why they did it at the time." The district court found it was "not clear that the officer was truly investigating or making contact with somebody who was committing or had committed or was about to commit a crime." The court also said it

"watched the officers and their facial expressions as they testified separately and watched and listened to what their conduct was, the things that might have been questionable, they could not recall, were not aware of, and it was things that they seemed-the impression I get from listening to their testimony is that they pieced things together after the fact."

         Additionally, the district court found "contradictions and inconsistency in the testimony between the officers that doesn't really balance or fit ...


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